Milwaukee Deputy Sheriffs' Association, hereafter the Association, and Milwaukee
County
(Sheriff's Department), hereafter Employer or County, are parties to a collective bargaining
agreement that provides for final and binding arbitration of grievances. On May 6, 2009, the
Association filed a request to initiate grievance arbitration requesting the Commission to
appoint a
WERC Commissioner or staff member to arbitrate two grievances. Pursuant to this request,
the
Commission appointed Coleen A. Burns, a member of its staff, as Arbitrator. Pursuant to
the
agreement of the parties, the two grievances were consolidated for the purpose of hearing
and
decision. The arbitration hearing, which was held on August 27, 2009 in Milwaukee,
Wisconsin,
was not transcribed. The parties filed post-hearing written argument by November 3, 2009
and the
record was closed on November 6, 2009; following the receipt of a delayed exhibit.

ISSUES

At hearing, the parties stipulated to the following statement of the issues:

Was there just cause to suspend Detective Worden and Deputy Floryance for
four days?

Special Operations is the division of the Milwaukee Sheriff's Department which has
the
responsibility to serve civil process, including evictions. At times, Deputies serving
evictions work
with a partner.

If a Deputy needs to enter property in order to properly execute the eviction and the
Deputy
does not have a key that unlocks the door, then the Deputy may be required to force a door.
The
Deputies generally notify their supervisor and the property owner of a forced door. The
property
owner has the option to file a claim for damages with the County.

On December 23, 2008, Deputy Floryance, hereafter Deputy F, and Detective
Worden,
hereafter Detective W, were partners assigned to execute evictions. Detective W kicked in
the door
of one of the properties.

Deputy F subsequently informed the property owner of the forced entry and the
property
owner responded that she had provided a key to that door. Deputy F then examined the
eviction
paperwork packet and discovered that it contained a key to the door. Deputy F notified
Lieutenant
Kernan of these events.

Following an Internal Affairs investigation, Sheriff David A. Clarke
issued Order No. 1348 and
1349 imposing a four-day suspension, without pay, on Deputy F and Detective W,
respectively,
for violating Mi1waukee County Sheriff's Office Rules and Regulations Efficiency and
Competence and Milwaukee County Civil Service Rule VII, Section 4(1) - (u) Substandard or
careless job performance.

The Association and the affected Officers grieved the suspensions.
Thereafter, the parties
submitted the grievance to arbitration under their labor contract.

POSITIONS OF THE PARTIES

County

Deputy F and Detective W are experienced Deputies and each has served in the
process area
for some time. Each is aware of the rules governing the conduct of members of the
Department by
virtue of their training, experience, publication of rules and policies, as well as having
rulebooks and
manuals available to them in their work unit.

It is the Deputy's responsibility to review the documentation to assure adequate and
successful job performance. Had Deputy F checked the eviction paperwork, then he would
have
discovered the key prior to the forced entry. As recently as 2008, Deputy F received
discipline in
the form of a written reprimand for violating Department rules concerning efficiency and
competence.

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Prior to forcing entry, Detective W did not check the documentation or ask Deputy F
if the
documentation contained a key. Detective W admitted that he did not adequately
communicate with
his partner.

Each Deputy has admitted their mistake, but neither wishes to be held accountable for
the
consequences of his conduct. If indeed there is some sense of remorse for their negligence,
it is only
appropriate that there be accompanying discipline to bring true atonement.

Association

If there were any inefficiency present on December 23, 2008, it was that the
Department had
issued no rule or directive relative to an indication in the eviction paperwork that a property
owner
had provided a key. After December 23, 2008, the Department issued rules relative to
eviction
paperwork; which rules included the requirement that the form be clearly labeled "Key" to
indicate
that a property owner had provided a key. After the implementation of these rules, there has
not been
a wrongful breach.

Under just cause, the employer bears the burden to prove wrongdoing and that the
punishment imposed for proven wrongdoing is appropriate under all relevant facts and
circumstances. The relevant facts and circumstances do not justify a four-day suspension.

The Sheriff imposed excessive discipline after these Deputies turned down an offer
from
their supervisors that they considered extremely unethical. This offer was that if they paid
for a
replacement door personally, they would avoid any discipline relative to this matter. The
Department should not be able to elevate discipline arbitrarily.

The Association and the Grievant Deputies respectfully urge the Arbitrator to find no
rules
violation. If the Arbitrator concludes that the Deputies have violated rules as charged, then
the
Arbitrator should hold that the level of discipline imposed is inappropriate and reduce the
discipline
accordingly.

DISCUSSION

Just Cause Standard

In the present case, the parties have agreed that the County's right to discipline the
Grievants
is subject to "just cause." Under the just cause for discipline standard, the employer has the
burden
to prove that the employee has engaged in behavior for which the employer has a disciplinary
interest. If the employer sustains this burden, then the employer has the burden to prove
that the
discipline imposed for this behavior is appropriate based upon relevant facts and
circumstances.

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Alleged Misconduct

Deputy F

As set forth in the "Attachment to County of Milwaukee Notice of Suspension," the
charges
against Deputy F were sustained on the basis that:

Deputy Floryance failed to adequately review the packet of paperwork provided to
him for the eviction in question. Had he gone through the packet he would have
found the envelope containing the key to the apartment. Whereas, the procedure was
changing to have the clerk write "Keys" on the top of the paperwork it is still the
officer's responsibility to check the paperwork they have prior to making an
execution of service for any special circumstances, or in this case, keys.

On December 23, 2008, Deputy F was the partner who had the responsibility to
handle the
eviction paperwork. At the time of the incident, Deputy F had more than fifteen years of
experience
with the Department.

Deputy F states that, prior to October 2008, he had not executed evictions, but he
had
served
other types of civil process. According to Deputy F, his training in evictions began in early
December of 2008; this training consisted of thirteen days of partnering with Detective
Nilsen; and
that, on December 23, 2008, he did not "know evictions one hundred percent." Deputy F
states that
Detective Nilsen normally controlled the paperwork. Deputy F further states that, in his
experience,
if the eviction paperwork packet contained a key, then the packet generally would have the
word
"key" or the letter "K" written on the outside of the packet. Deputy F does not recall any
instruction
to feel the eviction paperwork packet to determine if it contained a key. During the Internal
Affairs
investigation, as well as at hearing, Deputy F stated that he did not examine the eviction
paperwork
packet for a key until after the property owner told Deputy F that she had provided a key
and that he
apologized to the property owner for his mistake.

Detective W

As set forth in the "Attachment to County of Milwaukee Notice of Suspension," the
Sheriff
sustained charges against Detective W on the basis that:

Detective Worden failed to adequately communicate with his partner relative
to the circumstances surrounding the particular eviction they were serving relative
to this incident. Prior to forcibly making entry to the apartment, Detective Worden
did not ask Deputy Floryance whether they possessed keys to the apartment.

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Detective W, who began his employment with the Department in January of 1995,
has been
a Detective for approximately five years. On December 23, 2008, Detective W gained
entrance to
the property by forcing the door.

Detective W states that, as a Detective, he has experience in serving civil process,
including
evictions, and that he received on-the-job training in evictions by partnering with Detective
Nilsen.
According to Detective W, generally, he does not handle the paperwork on evictions.
Detective W
states that, because of his experience, he knows that the eviction paperwork packet
sometimes
contains a key to the property and that a Deputy would know there was a key by feeling the
bottom
of the packet. In Detective W's experience, the Officer handling the paperwork will state
that he has
keys to the property. Detective W recalls that, prior to December 23, 2008, he had not
worked with
Deputy F on evictions. Detective W states that, on December 23, 2008, he did not examine
the
eviction paperwork packet to determine if it contained a key prior to forcing the door.
Detective W
further states that he made a mistake when he did not ask Deputy F if Deputy F had a key to
the
property prior to kicking the door.

Summary

On December 23, 2008, Deputy F and Detective W each knew that the eviction
paperwork
packet could contain a key that opened the door to the apartment. Given this knowledge, as
well as
the likelihood that forcing a door would cause damage to private property and make it
difficult to
secure the door upon leaving, each Officer should have made a reasonable attempt to verify
that the
eviction paperwork packet did not contain a key prior to forcing entry.

Deputy F, the partner in charge of the paperwork, did not adequately examine the
eviction
paperwork packet to determine if it contained a key prior to the forced entry. Detective W
forced
the door without either examining the eviction paperwork packet to determine if it contained
a key
or asking Deputy F, the partner in charge of the paperwork, if the eviction paperwork packet
contained a key.

Neither Officer made a reasonable attempt to verify that the eviction paperwork
packet did
not contain a key prior to forcing entry. As a result, the Officers caused unnecessary
damage to the
apartment door and exposed the Department to preventable liability. These two Officers
have
engaged in behavior for which the Department has a legitimate disciplinary interest.

Appropriate Level of Discipline

Captain Richards, who conducted the Internal Affairs investigation in this matter,
states that
there have been similar cases in which Officers executing evictions forced doors when the
Officers
had keys to the doors. Captain Richards does not recall any other IAD case involving

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this conduct. Captain Richard recalls that, in the past, these cases have been resolved
by issuing an
EAD that counsels the Officer not to repeat the conduct.

Sergeant Graber is aware of a Department Officer who kicked in the wrong door
when
serving an eviction. According to Sergeant Graber, this Officer received a written
reprimand.

Sergeant Liebenthal did not testify at hearing. The record includes a copy of the
transcript
of his IAD interview. In this interview, Sergeant Liebenthal indicated that, in the past, the
Department would have responded with something, such as an EAD, written reprimand or
referral
to IAD. Sergeant Liebenthal did not identify the factors relied upon by the Department in
determining which of the three responses were appropriate. Nor did he identify the specific
conduct
that warranted a referral to IAD, rather than the issuance of an EAD.

According to Captain Richards, the Sheriff has the view that there is an on-going
problem
with forcing doors when a key is available; that, therefore, the Department's prior responses
to this
behavior have not been successful in correcting this behavior; and that, therefore, the Sheriff
needs
to impose a higher level of discipline to correct the problem.

Captain Richards does not claim to have personal knowledge of such an on-going
problem. Nor
does she claim to have personal knowledge of any instance in which an employee received an
EAD
for forcing a door when a key was available and, thereafter, repeated such conduct.

According to Detective W, supervisors at roll call have not stated that they were
coming
down harder on evictions gone awry. Detective W also states that, if the Department had
been
having an on-going problem with Officers mistakenly forcing a door, then he would have
heard that
there was such a problem. Deputy F states that he had not received prior notice of mistakes
in
evictions or that the Sheriff was "coming down" on eviction mistakes.

Sergeant Graber states that, in some instances, the Sheriff is high in accountability
and has
made public statements to that effect. Neither Sergeant Graber, nor any other witness,
recalled any
Sheriff statement that Officers who force a door when a key is available will be held to a
higher
standard of accountability.

At hearing, and during the IAD investigation, Detective W claimed that the manner
in
which
the Department processed his case was unusual and troubling. Detective W recalls that,
when he
initially contacted Lieutenant Kernan to report the incident, Lieutenant Kernan did not say
much.
Detective W further recalls that, subsequently, this Lieutenant told him to write a report and
that
Detective W placed this report in the computerized system as a draft. According to
Detective W,
Sergeant Liebenthal told Detective W that, if Detective W paid for the door, then there
would be no
need for an investigation. Detective W states that he considered this offer ethically
questionable and,
therefore, asked to speak with Deputy Inspector Welch, a Department supervisor. Detective
W
recalls that Deputy Inspector Welch confirmed that, if Detective W paid for the door, then
there
would be no need for an

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investigation. Detective W understands that this offer originated with Inspector Carr.
According
to Detective W, he declined to pay for the door and his case went to IAD.

Detective W states that Lieutenant Kernan told Detective W to remove his draft
report
from
the system and destroy the draft. According to Detective W, he asked the Lieutenant if he
could keep
a copy of this draft; that the Lieutenant stated that he could; and that, while Detective W
followed
this directive of the Lieutenant, the Lieutenant's directive was highly unusual.

Lieutentant Kernan did not testify at hearing. The Internal Affairs "Investigative
Brief"
summarizes an interview with Lieutenant Kernan. According to this summary, Lieutenant
Kernan
ordered Detective W and Deputy F to write a report, but rescinded this order after Detective
Inspector Welch told him to write it up as an Internal Affairs investigation.

Deputy F states that, on December 26, 2008, Deputy Inspector Welch spoke with
him; that
he told her what had happened on December 23, 2008; and that, later that day, Sergeant
Liebenthal
told Deputy F that, if Deputy F would be willing to pay for the door, then the IA case would
go away.
According to Deputy F, he was stunned and made no response. Deputy F states that,
previously, he
had not heard of the Department making such an offer. Deputy F states that he understood
that
Deputy Inspector Welch had asked Sergeant Liebenthal to relay the offer to Deputy F.

In his interview, Sergeant Liebenthal recalled a conversation between Detective W
and
Deputy Inspector Welch in which the Deputy Inspector reiterated that Detective W could pay
for the
door or the matter would go to Internal Affairs. Sergeant Liebenthal further recalled that
Detective
W responded to Deputy Inspector Welch by indicating that such a payment would be
inappropriate,
perhaps extortionate, and that, if he did something wrong, then the Department should refer
the
matter to IAD. Sergeant Liebenthal recalled that Deputy Inspector Welch responded that
Detective
W's payment was voluntary. According to Sergeant Liebenthal, he understood that Deputy
Inspector
Welch had relayed an offer that originated with Inspector Carr.

In his interview, Sergeant Liebenthal stated that, in his opinion, it was inappropriate
to ask
the two officers to pay out of their own pocket for a mistake that occurred in the line of
duty.
Captain Richards states that, in her personal opinion, it would not be appropriate to make an
offer
to pay for the door or go to IAD, but that she is not aware of such an offer.

Deputy Inspector Welch and Inspector Carr did not testify at hearing. Nor is it
evident that
Internal Affairs interviewed either.

According to Captain Richards, the normal procedure for reimbursement of damage
to
private property is that the property owner files a claim with the Sheriff's Department or
County; that
the Department investigates the claim; and that IAD makes a decision to refer the

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claim to the County Corporation Counsel, with a recommendation to pay or negotiate.
In his
interview, Sergeant Liebenthal stated that, as of the date of his interview on January 9, 2008,
the
property owner had not filed a claim.

Captain Richards states that Officers do not write reports on matters referred to IAD.
Captain
Richards agrees that it is not common to remove a report after that report is in the system.

Summary

Under the just cause standard, the purpose of the discipline is to correct behavior for
which
an employer has a disciplinary interest, rather than to punish an employee. To that end,
progressive
discipline is a generally recognized component of the just cause standard. Under the just
cause
standard, the level of discipline imposed must be reasonably related to the magnitude of the
employee misconduct and employees who engage in similar behaviors must not be the
recipient of
unfair disparate treatment.

It is not evident that, in his fifteen years with the Department, Detective W has
received any
prior discipline. Deputy F's testimony indicates that, in nearly eighteen years of
employment, he has
had one prior discipline, i.e., a written reprimand. This discipline, which
occurred in 2008, was for
violating Rule 202.20. The record fails to establish the nature of the conduct that gave rise
to this
rules violation.

The conduct for which IAD sustained charges and the Sheriff imposed discipline
involved
a lapse in judgment, rather than intentional misconduct. The lapse in judgment displayed by
Deputy
F and Detective W on December 23, 2008 is not misconduct of a magnitude that would
warrant
immediate suspension rather than the imposition of progressive discipline. Deputy F and
Detective
W's good work records over an extended period, as well as their willingness to acknowledge
that
they had made a mistake, reasonably indicate that counseling in the form of an EAD is likely
to
correct the behavior for which they received discipline.

It is evident that, in the past, Officers have engaged in the same type of conduct for
which
Detective W and Deputy F received discipline. The record indicates that these Officers
received
counseling in the form of an EAD and that the Department did not refer these Officers to
IAD for
an investigation of a possible rules violation. It is not evident that, prior to December 23,
2008; an
Officer who received such an EAD failed to correct his/her behavior.

The County has a procedure for evaluating a property owner's claim for damages and
the
County's liability therefore. In the present case, the property owner did not file a claim for
damages
in accordance with the County's procedure and there had been no evaluation, under the
County's
procedure, of the reasonableness of the property owner's claims. Given this deviation from
established procedure, as well as the lack of evidence that Officers who damage

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private property during the execution of an eviction have any obligation to pay for such
damage,
Detective W's refusal to pay damages is reasonable.

Conclusion

Under the just cause standard, the conduct of Detective W and Deputy F, as well as
the
Department's response thereto, must be evaluated on the relevant facts and circumstances.
By
referring Detective W and Deputy F to Internal Affairs for an investigation, the Department
treated
Detective W and Deputy F differently than other employees who have engaged in similar
conduct.
The record provides no justification for this difference in treatment.

In referring Deputy W and Deputy F to Internal Affairs for an investigation, the
Department
subjected these Officers to unfair disparate treatment. Accordingly, neither the referral to
Internal
Affairs, nor the decision that resulted from this referral, i.e., that Deputy F
and Detective W violated
Mi1waukee County Sheriff's Office Rules and Regulations 202.20 Efficiency and
Competence and
Milwaukee County Civil Service Rule VII, Section 4(1) - (u) Substandard or careless job
performance, comports with the just cause for discipline standard.

The Employer does not have just cause to suspend Detective W and Deputy F for four
days, or
for any other length of time, because a discipline of suspension is excessive. Upon
consideration
of the relevant facts and circumstances, including the Officers' work records, the nature of
their
conduct on December 23, 2008, and the Department's prior response to such conduct, the
undersigned concludes that the Department's disciplinary interest in this matter is served by
the
issuance of an EAD. The Employer has just cause to issue an EAD to Detective W and
Deputy F
counseling each not to repeat their December 23, 2008 conduct of failing to make a
reasonable
attempt to determine if the eviction paperwork packet contains a key prior to forcing the
door.

Based upon the foregoing, and the record as a whole, the undersigned makes and
issues the
following

AWARD

1. There was not just cause to suspend Deputy Floryance and Detective
Worden for
four days.

2. The appropriate remedy for this unjust discipline is for the County and the
Office of
the Sheriff to immediately:

b) rescind Office of the Sheriff Orders No. 1348 and 1349, dated
April 23, 2009
and accompanying "The County of Milwaukee Notice of Suspension" and the
four days suspension referenced therein;

c) expunge from Deputy Floryance and Detective Worden's
personnel files all
references to the Internal Affairs decision to sustain charges against Deputy
Floryance and Detective Worden and to the four-day suspension that is the
subject of Office of the Sheriff Orders No. 1348 and 1349, dated April 23,
2009, and accompanying "The County of Milwaukee Notice of Suspension;"

d) make whole Deputy Floryance and Detective Worden by
restoring to each
all wages and benefits lost because of their unjust suspension of four days.

3. A supervisor in the Milwaukee County Sheriff's Department with authority to
issue
EADs to Officers who execute evictions may, if he/she so chooses:

a) counsel Deputy Floryance by issuing an EAD not to repeat his
December 23,
2008 conduct of failing to make a reasonable attempt to determine if the
eviction paperwork packet contains a key prior to forcing the door;

b) counsel Detective Worden by issuing an EAD not to repeat his
December 23,
2008 conduct of failing to make a reasonable attempt to determine if the
eviction paperwork packed contains a key prior to forcing the door.